May 23, 1994
Appeal from the Surrogate's Court, Suffolk County (Signorelli, S.).
Ordered that the appeals of Alexander Green and Walter, Conston, Alexander Green, P.C., from the order dated August 13, 1991, are dismissed, as that order was superseded by the order dated November 27, 1991, made upon reargument and renewal; and it is further,
Ordered that the order dated August 13, 1991, is affirmed insofar as appealed from by Morgan Guaranty Trust Company of New York and Donald Vail; and it is further,
Ordered that the order dated November 27, 1991, is affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs payable by the appellants.
On the basis of our independent examination of the record and the applicable principles of law, we find no reason to disturb the Surrogate's finding of impropriety and overreaching by the attorney/drafter. The attorney/drafter failed to inform the testator of the financial consequences of inserting a clause in the will which granted commissions to the executors in connection with certain property which was not otherwise subject to commissions pursuant to SCPA 2307. He also did not inform the testator of the financial impact of this clause as applied to three coexecutors, or of his own duplicate charges in the form of executor's commissions and legal fees (see, Matter of Weinstock, 40 N.Y.2d 1; Matter of Laflin, 111 A.D.2d 924; Matter of Becker, 104 A.D.2d 444). Therefore, the Surrogate properly denied executor's commissions to the attorney/drafter (see, Matter of Weinstock, supra, at 6; Matter of Smith, 91 A.D.2d 789; Matter of Schaich, 55 A.D.2d 914). We agree with the Surrogate that the third coexecutor, who was also the testator's husband and primary beneficiary, was not estopped from invoking a claim of fraud at the accounting stage, interposed shortly after the two coexecutors filed their petition for an accounting (see, Matter of Laflin, supra; Matter of Thron, 139 Misc.2d 1045, 1049-1050; Matter of Harris, 123 Misc.2d 247, 249).
Furthermore, it would be inequitable to permit coexecutor Morgan Guaranty Trust Company of New York, which claims to have had no knowledge of the enhanced commission clause, to benefit from a coexecutor's wrongdoing by retaining commissions of almost twice the statutory amount (see, Matter of Rothko, 43 N.Y.2d 305, 321-322; Matter of Goldstick, 177 A.D.2d 225, 238-239, mod on other grounds 183 A.D.2d 684; Matter of Birnbaum v. Birnbaum, 157 A.D.2d 177, 188).
The Surrogate properly denied legal fees to the two law firms of which the attorney/drafter was a partner for services rendered in connection with the administration of the estate. The attorney/drafter's fraudulent scheme occurred while he was a partner acting in the ordinary course of business of each law firm and therefore each law firm is liable for the attorney/drafter's misconduct to the same extent as he is (see, Partnership Law § 24; Metflex Corp. v. Klafter, 123 A.D.2d 845). The record reveals that the attorney/drafter violated the Code of Professional Responsibility DR 1-102 (A) (4) ( 22 NYCRR 1200.3 [a] ) in connection with the drafting of the testators' will. Thus, he is not entitled to legal fees for any services rendered in connection with his duties as executor (see, Shelton v Shelton, 151 A.D.2d 659; Brill v. Friends World Coll., 133 A.D.2d 729, 730; Kyle v. Kyle, 94 A.D.2d 866; Williams v. Hertz Corp., 75 A.D.2d 766). Insofar as the attorney/drafter's conduct violated Code of Professional Responsibility DR 1-102 (A) (4) ( 22 NYCRR 1200.3 [a] ), the law firms of which he was a partner are also not entitled to a legal fee for any services rendered. Lawrence, J.P., Ritter, Hart and Krausman, JJ., concur.